Citation NR: 9729000
Decision Date: 08/21/97 Archive Date: 08/26/97
DOCKET NO. 94-16 549 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Manila,
Philippines
THE ISSUE
Whether the appellant has established basic eligibility for
Department of Veterans Affairs (VA) benefits.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Keith L. Salas, Associate Counsel
INTRODUCTION
This matter is before the Board of Veterans’ Appeals (Board)
on appeal from a determination by the Department of Veterans
Affairs (VA) Manila, Philippines Regional Office (RO) that
denied eligibility for VA benefits on the grounds that the
appellant did not have valid military service. The claim was
previously remanded in January 1997 for certification of
service. The requested development has been completed.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends, in essence, that he has qualifying
service as a guerrilla during World War II.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the claims
file. Based on its review of the relevant evidence in this
matter, and for the following reasons and bases, it is the
decision of the Board that the appellant is not eligible for
VA benefits.
FINDING OF FACT
The service department has twice certified that the appellant
had no service as a member of the Philippine Commonwealth
Army, including the recognized guerrillas, in the service of
the United States Armed Forces.
CONCLUSION OF LAW
The appellant is not eligible for VA benefits. 38 U.S.C.A. §§
101, 107 (West 1991 & Supp. 1997); 38 C.F.R. §§ 3.1, 3.8,
3.203 (1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
38 U.S.C.A. § 1110 (West 1991), pertaining to basic
eligibility for wartime disability compensation benefits,
requires that a recipient have been a veteran. Furthermore,
the provision requires that injury or disease be suffered,
contracted, or aggravated during active military, naval or
air service. The term “veteran” means a person who served in
the active military, naval, or air service, and who was
discharged or released therefrom under conditions other than
dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.1(d).
Service before July 1, 1946, in the organized military forces
of the Government of the Commonwealth of the Philippines,
while such forces were in the service of the Armed Forces of
the United States pursuant to the military order of the
President dated July 26, 1941, including among such military
forces, organized guerrilla forces under commanders
appointed, designated, or subsequently recognized by the
Commander in Chief, Southwest Pacific Area, or other
competent authority in the Army of the United States, shall
not be deemed to have been active military, naval, or air
service for the purposes of any law of the United States
conferring rights, privileges, or benefits upon any person by
reason of the service of such person or the service of any
other person in the Armed Forces, except for specified
benefits including disability compensation benefits
authorized by chapter 11, title 38, United States Code. 38
U.S.C.A. § 107(a); 38 C.F.R. § 3.8(c), (d).
Service in the Philippine Scouts under section 14 of Public
Law 190, 79th Congress (the “Armed Forces Voluntary
Recruitment Act of 1945”), shall not be deemed to have been
active military, naval or air service, except for benefits
including compensation for service-connected disability or
death; and dependency and indemnity compensation for service-
connected death. All enlistments and reenlistments of
Philippine Scouts in the Regular Army between October 6,
1945, and June 30, 1947, inclusive, were made under the
authority of Public Law 190 as it constituted the sole
authority for such enlistments during that period. 38
U.S.C.A. § 107(b); 38 C.F.R. § 3.8.
For the purpose of establishing entitlement to pension,
compensation, dependency and indemnity compensation or burial
benefits, VA may accept evidence of service submitted by a
claimant, such as a DD Form 214, Certificate of Release or
Discharge from Active Duty, or original Certificate of
Discharge, without verification from the appropriate service
department if the evidence meets the following conditions:
(1) the evidence is a document issued by the service
department, or a copy of an original document if the copy was
issued by the service department or if the copy was issued by
a public custodian of records who certifies that it is a true
and exact copy of the document in the custodian’s custody;
(2) the document contains needed information as to length,
time and character of service; and (3) in the opinion of VA
the document is genuine and the information contained in it
is accurate. 38 C.F.R. § 3.203(a) (1996). When the claimant
does not submit evidence of service or the evidence submitted
does not meet the requirements discussed above, VA shall
request verification of service from the service department.
38 C.F.R. § 3.203(c) (1996). See also Sarmiento v. Brown, 7
Vet.App. 80 (1994).
The Court of Veterans Appeals held in Sarmiento, that where
evidence submitted by an appellant to establish service is
insufficient under 38 C.F.R. § 3.203(a), 38 C.F.R. § 3.203(c)
requires VA to request certification from the proper branch
of service. The Court emphasized that the language of the
regulation is mandatory and does not contain any limitation
on the number of times that certification must be requested.
Although in dicta, the Court noted that in a “typical” case,
one certification would suffice, the Court found that
recertification was required where incorrect identifying
information was sent to the service department. Id.
The Court has held that findings by the United States Armed
Services for purposes of establishing service in the U.S.
Armed Forces are binding on the VA. Duro v. Derwinski, 2
Vet.App. 530, 532 (1992); see also Dacoron v. Brown, 4
Vet.App. 115, 120 (1993).
In March 1971 the appellant filed a claim for service
connection for a gunshot wound allegedly sustained in
December 1943 during guerrilla activities.
The RO requested verification of service from the Department
of the Army. The appellant’s name was listed as [redacted]
[redacted]. No service number was provided. The date and
place of birth were listed as October 23, 1923, [redacted],
[redacted]. The dates of service were listed as June 3,
1943 to July 5, 1946. The branch of service was listed as
the Army. The rank and organization was listed as “Pfc 1st
Inf Regt PQOG.” Except for the organization, the information
appears to have been taken from the appellant’s claim.
The April 1971 the Department of the Army certified that the
appellant had no service as a member of the Philippine
Commonwealth Army including the recognized guerrillas in the
service of the United States Armed Forces.
In June 1993, the appellant attempted to reopen a claim for
benefits. He was notified that he had been previously been
found not have valid service either as a member of the
Philippine Commonwealth Army or as a recognized guerrilla.
In September 1993, the appellant indicated that he was a
recognized guerrilla. He reiterated this contention in his
substantive appeal
A certification from the Department of National Defense,
General Headquarters, Armed Forces of the Philippines, dated
in September 1991, indicated that the appellant’s name was
included on the Approved Revised Reconstructed Guerrilla
Roster of “C Co 1st Bn, 1st Inf Regt PQOG” with dates of
recognition from January 1, 1945 to August 31, 1945, and with
a revised dated of recognition of May 7, 1942. The
certification also states that the appellant joined on June
5, 1943 and was discharged on September 1, 1945. The
document indicates that the appellant’s date and place of
birth, organization, date joined, and date discharged, were
obtained from the appellant’s Form 23, Affidavit for
Philippine Army Personnel. The form indicates that the
appellant was born on June [redacted], 1923 in [redacted], [redacted].
The appellant testified at a hearing before the RO that he
was inducted into the guerrilla forces in 1943, and served
with his unit until discharge in 1945.
A photocopy of a Form 23, Affidavit for Philippine Army
Personnel, dated in July 1946 was received in July 1996. The
appellant asserts in the affidavit that he had guerrilla
service from June 5, 1943 to August 31, 1945, and was
discharged on September 1, 1945. The appellant indicates in
the affidavit that from June 6, 1943 through December 31,
1944 he was with C Co. 1st Bn. 1st Inf. Regt. where he
engaged in intelligence, combat, and harassing the enemy. He
asserted that on January 1, 1945 he was attached to the 1st
Cav. Div. where he engaged in combat and mopping up
operations. The appellant listed his birth date as June 11,
1923 and his birthplace as [redacted], [redacted].
Another attempt at verification was made in March 1997. This
request took account of inconsistencies in the appellant’s
place and date of birth. It listed the appellant’s place of
birth as [redacted], [redacted], and his date of birth as June [redacted],
1923. This verification request also provided the name of
the appellant’s father as listed on the Form 23. The U.S.
Army Reserve Personnel Center (USARPC) responded that
evidence was insufficient to warrant a change in the prior
negative certification of April 1971.
Without verification of qualifying active military, naval or
air service, the appellant is not considered a veteran and
does not have basic eligibility for VA benefits. As the law,
and not the evidence, is dispositive on this issue, the
appellant’s claim must accordingly be denied because of lack
of legal entitlement. Sabonis v. Brown, 6 Vet.App. 426, 430
(1994).
ORDER
Basic eligibility of the appellant for Department of Veterans
Affairs Benefits is denied.
JOHN E. ORMOND, JR.
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1997) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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